Aureflam Corp. v. Pho Hoa Phat I, Inc.

ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION TO DISMISS COUNTERCLAIMS

I. INTRODUCTION

Plaintiff Aureflam Corporation (“Auref-lam”) moves to dismiss counterclaims filed by Defendants Pho Hoa Phat I, Inc., Pho Hoa Phat I, Inc., and Johnny Lee (“PHP”) for failure to state a sufficient claim under Fed. R. Civ. Pro. 12(b)(6) and 9(b), or, in the alternative, for a more definite statement under Fed. R. Civ. Pro. 12(e). The motion is based on Aureflam’s contentions that (1) its service mark has attained incontestable status under 15 U.S.C. § 1065 (“Lanham Act”); (2) PHP has failed to plead fraud with particularity as required under Fed. R. Civ. Pro. 9(b); (3) PHP has not alleged facts demonstrating that the “Pho Hoa” mark at issue is generic and thus not entitled to trademark protection; (4) statutory damages under 15 U.S.C. § 1120 are not available in the absence of fraud and none has been sufficiently pled; and, (5) PHP’s claim for injunctive relief under Cal. Bus. & Prof.Code § 17200 is barred by Proposition 64. The motion was fully briefed and heard by the Court on June 22, 2005. Based on all papers filed to date, as well as on the oral argument of counsel,…